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Famed Los Angeles lawyer Johnnie Cochran Jr. died earlier this week, but he still has a chance at a form of legal immortality: a Supreme Court decision bearing his name. Less than a week before his death on Tuesday, the case of Ulysses Tory v. Johnnie Cochran Jr., a dispute between Cochran and a disgruntled former client, was argued before the Supreme Court. Lawyers for both sides agreed that Cochran’s death does not automatically moot the case, which has potentially important First Amendment ramifications. “I have options. I have a lot of questions. I don’t have answers,” said Cochran’s lawyer in the Supreme Court case, Jonathan Cole of the Sherman Oaks, Calif., firm of Nemecek & Cole. The high court apparently has questions, too. Late on Wednesday, according to opposing counsel Erwin Chemerinsky, professor at Duke Law School, the Court asked both sides for their views of the impact of Cochran’s death on the case. Replies are due within the next 10 days. “It’s a novel situation, so there aren’t clear rules about what happens next,” says Chemerinsky, who argued before the Court March 22 on behalf of Cochran’s ex-client Tory. The Court does have rules about what happens when criminal defendants or public officials who are parties to a pending case die, but Cochran fits into neither category. At issue in the case is an injunction Cochran sought and won from a California judge in 2002 to keep his former client Tory from harassing him. Tory, upset with Cochran’s representation of him in a civil rights lawsuit in the 1980s, picketed Cochran’s office a decade later with signs calling him a liar and a crook. The injunction bars Tory from picketing Cochran or his law firm offices, and from uttering statements about Cochran in any public forum. Tory is asking the high court to find that the injunction is a form of prior restraint repugnant to the First Amendment. At the oral argument March 22, the Court showed little sympathy for the injunction. Cochran, in failing health, was not at the Court to hear the oral argument, but his wife Dale Mason was on hand, as were attorneys from some of his law firm’s nationwide offices. In arguing that mootness is not a sure thing, Chemerinsky notes that aspects of the injunction outlive Cochran. For example, he said, the injunction bars Tory from making any statements about Cochran’s firm — not just Cochran himself. “This obviously continues after death,” says Chemerinsky. “Also, the terms of the injunction say that Tory never can say anything about Cochran and that, too, continues after his death.” Cochran’s lawyer Cole agrees that “the firm and [Cochran's] estate could stand to benefit” from leaving the injunction in place, which would keep the case alive. But Cole said that even if the case stays alive, it is no longer likely to produce a major First Amendment decision. “I know Erwin is looking for a more global ruling. I don’t think the Court is going to go there.”

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